Advancing Judicial Review of Wetlands
and Property Rights Determinations:
Army Corps v. Hawkes Co.
Steven J. Eagle*
Introduction
Over the years, the U.S. Supreme Court has established many doctrinal and procedural barriers that landowners must confront in ascertaining and protecting their rights. Some barriers are of Byzantine
complexity. Federal statutes, especially those pertaining to the environment, often severely constrain the use of private property. While
the text of these laws might be general and somewhat aspirational in
tone, the rules issued by agencies charged with administering them
often are voluminous, detailed, and interpreted subjectively.
When faced with the possibility that their preferred land use might
run afoul of federal environmental agency requirements, ­landowners
have three plausible options. First, they might choose to abandon
their plans and steer far clear of possible problems with government
­regulators. But that choice would reduce the value of the land and
might contribute toward reducing economic productivity. Second,
­landowners might comply with whatever directives the relevant government agency ­ultimately sets forth. But that often involves drastic
cutbacks of owners’ plans, great expense, and significant delay. Finally,
one might think, the owners could challenge whether the regulatory
statute applies to their lands in the first place. And yet, in U.S. Army
Corps of E
­ ngineers v. Hawkes Co., Inc., the federal government asked the
­Supreme Court to foreclose such a challenge to agency jurisdiction.1
In a modest but important victory for landowners, all eight sitting
Supreme Court justices rejected the government’s position. The Court
* Professor of Law, Antonin Scalia Law School at George Mason University, seagle@
gmu.edu.
1 136
S. Ct. 1807 (2016).
257
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thus vindicated the principle that the acts of agency regulators are not
above speedy and effective judicial review. As the Court observed in
1967, in Abbott Laboratories v. Gardner, “judicial review of a final agency
action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.”2
And as the Court added a decade later, in Califano v. Sanders, the
­Administrative Procedure Act (APA) “undoubtedly evinces Congress’
intention and understanding that judicial review should be widely
available to challenge the actions of federal administrative officials.”3
Hawkes continues the Court’s recent trend toward alleviating unnecessary procedural hurdles that have stymied property owners.
It also continues the Court’s recent proclivity to realistically examine the possibility that government will use its superior strength to
­extort unjustified concessions from landowners.
I. Judicial Review of Wetlands Jurisdictional Determinations
A. Hawkes: A Short History
The parcel that was at issue in the Hawkes case is located in Marshall
County, Minnesota, and is rich in organic peat. As Chief Justice John
Roberts explained in his opinion for the Court, peat has many beneficial uses, but its mining has significant environmental consequences
that require its regulation under state and federal law.4 Hawkes Co., the
respondent in the case, had sought permission to mine high-quality
peat from the parcel, which it had an option to purchase.
The Clean Water Act (CWA) regulates the discharge of pollutants into
“the waters of the United States.”5 In December 2010, Hawkes applied
to the U.S. Army Corps of Engineers for a permit that would authorize
“the discharge of dredged or fill material into the navigable waters at
specified disposal sites.”6 In the course of extensive communications,
“Corps officials signaled that the permitting process would be very
expensive and take years to complete,” and that Hawkes “would have
to submit numerous assessments of various features of the property.”7
2 387
U.S. 136, 140 (1967).
4 See
Hawkes, 136 S. Ct. at 1812.
3 430
5 33
U.S. 99, 104 (1977).
U.S.C. §§ 1311(a), 1362(7), (12).
6 Hawkes,
7 Id.
258
136 S. Ct. at 1813 (quoting 33 U.S.C. § 1344(a)).
Advancing Judicial Review
Hawkes did apply for the permit, and, in February 2012, the Corps
ruled that the parcel definitively contained wetlands that were subject to regulation under the CWA. Such a ruling that a parcel does,
or does not, contain wetlands over which the Corps has jurisdiction
is referred to as an “approved jurisdictional determination,” often
called an “approved JD.”8 After appeals within the agency, the Corps
issued a slightly modified “revised JD,” asserting that the parcel
was subject to CWA regulation, since “its wetlands had a ‘significant
nexus’ to the Red River of the North, located some 120 miles away.”9
B. Judicial Review Litigation in the Lower Courts
The APA, which is Congress’s general law prescribing how federal
agencies operate, provides for judicial review of a “final agency a­ ction
for which there is no other adequate remedy in a court.”10 In 1997, in
Bennett v. Spear, the Supreme Court synthesized its ­precedents on the
meaning of this requirement.11
As a general matter, two conditions must be satisfied for
agency action to be “final”: First, the action must mark the
consummation of the agency’s decisionmaking process—it must
not be of a merely tentative or interlocutory nature. And second,
the action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.12
Applying this standard in Hawkes, the district court dismissed
the complaint seeking judicial review of the revised JD, holding that
the JD was not a “final agency action for which there is no other
­adequate remedy in a court.”13 The court cited other federal courts
that had ruled similarly.14
8 See
9 Id.
10 5
id. at 1812.
at 1813 (quoting approved JD).
U.S.C. § 704.
11 520
12 Id.
U.S. 154 (1997).
at 177–78 (quotations and citations omitted).
13 Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 963 F. Supp. 2d 868, 872, 878 (D.
Minn. 2013), rev’d, 782 F.3d 994 (8th Cir. 2015), aff’d, 136 S. Ct. 1807 (2016).
14 See id. at 876–78 (citing, inter alia, Fairbanks N. Star Borough v. U.S. Army Corps
of Eng’rs, 543 F.3d 586 (9th Cir. 2008); Greater Gulfport Props., LLC v. U.S. Army Corps
of Eng’rs, 194 Fed. App’x 250 (5th Cir. 2006) (unpublished); St. Andrews Park, Inc. v.
U.S. Dep’t of Army Corps of Eng’rs, 314 F. Supp. 2d 1238, 1244–45 (S.D. Fla. 2004)).
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While Hawkes’s appeal to the U.S. Court of Appeals for the Eighth
Circuit was pending, the Fifth Circuit decided the similar case of
Belle Co., LLC v. U.S. Army Corps of Engineers.15 There, the Fifth Circuit
held that the plaintiff had not met the second Bennett factor since no
legal consequences flowed from issuance of the revised JD. It distinguished Sackett v. Environmental Protection Agency, where the S
­ upreme
Court held in 2012 that an Environmental Protection Agency (EPA)
compliance order was a “final agency action” for which there was no
adequate remedy other than judicial review, and that nothing in the
Clean Water Act would preclude such review.16
Subsequently, the Eighth Circuit reversed the district court and found
for Hawkes. In a 2–1 opinion by Judge James Loken, the court held that
both the district court and the Fifth Circuit in Belle had ­misapplied
both Bennett and the Supreme Court’s more recent ­opinion in Sackett.
Judge Loken stressed the Supreme Court’s admonition in Califano that
Congress wanted judicial review “widely available to challenge the actions of federal administrative officials.”17 In light of its direct conflict
with Belle, the Supreme Court granted review in Hawkes.18
C. The Supreme Court Holds Courts May Review Agency Determinations
That Private Lands May Be Regulated under the Clean Water Act
1. The Court upholds review under a standard that the Corps’
assertion of jurisdiction was both final and consequential
In his opinion for the Court upholding Hawkes’s right to judicial
review, Chief Justice Roberts based his analysis on the two-prong
test developed by the Court in Bennett. There,
we distilled from our precedents two conditions that generally
must be satisfied for agency action to be “final” under the
APA. “First, the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature. And second, the action must
be one by which rights or obligations have been determined,
or from which legal consequences will flow.”19
15 761 F.3d 383 (5th Cir. 2014), cert. denied, 135 S. Ct. 1548 (2014), denial of cert.
­vacated, cert. granted, and case vacated and remanded, 136 S. Ct. 2427 (2016).
16 132
S. Ct. 1367, 1371–73 (2012).
18 See
136 S. Ct. 615 (2015).
17 782
F.3d at 999 (quoting Califano, 430 U.S. at 104).
19 Hawkes,
260
136 S. Ct. at 1813 (quoting Bennett, 520 U.S. at 177–78).
Advancing Judicial Review
Roberts then stated that the Corps did not dispute that an
“­approved JD” satisfies the first Bennett condition of finality: It is
based on extensive factfinding, is typically not reexamined, may be
relied upon by the landowner for a period of five years, and was
­described by the Corps itself as a “final agency action.”20
The chief justice then stated that the second Bennett test was satisfied as well since the “definitive nature of approved JDs also gives
rise to ‘direct and appreciable legal consequences.’”21 He explained
this by discussing first what the Corps calls a “negative JD,” which
is one in which the Corps has definitively determined that a parcel
does not contain wetlands subject to its regulation.22 Furthermore,
Roberts wrote, the only other federal agency authorized to bring
civil enforcement proceedings under the CWA is the EPA.23 “Under
a longstanding memorandum of agreement between the Corps and
EPA,” he continued, a determination that a certain property does
not contain wetlands subject to regulation would “represent the
Government’s position in any subsequent Federal action or litigation concerning that final determination” for the five-year period.24
While private citizens could file lawsuits to enforce the CWA, a court
hearing such a suit “cannot impose civil liability for wholly past
violations.”25
Roberts thus concluded that if “negative JDs” have legal consequences by affording landowners protections from government lawsuits for five years, affirmative JDs, which state that the parcel does
contain wetlands subject to regulation, “represent the denial of the
safe harbor that negative JDs afford.”26 Therefore, “[b]ecause ‘legal
consequences . . . flow’ from approved JDs, they constitute final
agency action.”27
20 Id.
at 1813–14.
21 Id.
at 1814 (quoting Bennett, 520 U.S. at 178).
23 Id.
(citing 33 U.S.C. § 1319).
25 Id.
(citing 33 U.S.C. §§ 1319(d), 1365(a)).
22 Id. (citing 33 CFR pt. 331; Corps, Regulatory Guidance Letter No. 05–02, § 1 (June
14, 2005)).
24 Id.
(quoting EPA, Memorandum of Agreement: Exemptions under Section 404(F)
of the Clean Water Act §§ IV–C–2, VI–A (1989)).
Id. (citing 5 U.S.C. § 551(13) (defining “agency action” to include agency rules,
licenses, etc., or the “denial thereof”)).
26 27 Id.
(quoting Bennett, 520 U.S. at 178 (internal citation omitted)).
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Cato Supreme Court Review
This holding did not bring the Court’s analysis to an end,
however. To be reviewable under the APA, not only must an
order be final, but there must also be no adequate alternatives
­available to the landowner other than judicial review.28 In Hawkes,
the g
­overnment asserted that respondents had two adequate
­a lternatives: simply discharging fill material without a permit, or
applying for a permit and seeking judicial review if displeased
with the results.29
The Court found that discharging fill without a permit would be
an inadequate alternative since landowners who are mistaken in
thinking their property not to be within CWA jurisdiction would
be liable for heavy civil penalties and possible criminal sanctions.
Applying for a permit and seeking judicial review only after an
­unfavorable decision would be inadequate as well, since “the permitting process can be arduous, expensive, and long.”30 Chief Justice
Roberts added that, for the type of permit sought by Hawkes, “one
study found that the average applicant ‘spends 788 days and $271,596
in completing the process,’ without ‘counting costs of mitigation or
design changes.’”31 Roberts also noted that just because landowners
can obtain judicial review of a permit denial, this does not imply that
courts are barred from reviewing other final agency decisions earlier
in the process, including approved JDs.32
In sum, the thrust of Chief Justice Roberts’s analysis is that an
­approved JD satisfies the two prongs of Bennett because it is final
and—since it is binding on the government as a whole—has independent legal consequences.
Unlike the rest of the Court, Justice Ruth Bader Ginsburg did not
accept that the memorandum of agreement between the Corps of
Engineers and the EPA was binding on the government. She stated
that the Court had received “scant briefing” about the memorandum
and that the government had argued in its brief that a “reading of the
memorandum to establish that JDs have binding effect in litigation
28 See
5 U.S.C. § 704.
29 Hawkes,
136 S. Ct. at 1815.
Id. (noting civil penalties of up to $37,500 for each day in violation, 33 U.S.C.
§ 1319(c), (d)).
30 31 Id. at 1812 (quoting Rapanos v. United States, 547 U.S. 715, 721 (2006) (plurality op.)).
32 Id.
262
at 1816 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)).
Advancing Judicial Review
does not ‘reflec[t] current government policy.’”33 Furthermore, she
added, “Bennett dealt with finality quickly,” and did not “­displace
or alter the approach to finality established by” two much earlier
cases on that topic, Abbott Laboratories and Frozen Food Express v.
United States.34 Because she agreed that JDs are “definitive” and have
“an i­mmediate and practical impact,” however, Justice G
­ insburg
­concurred in the judgment of the Court in favor of Hawkes, just
not in the reasoning that the memorandum of agreement binds the
government.35
Abbott Labs, Frozen Food Express, and Justice Ginsburg’s opinion in
Hawkes shared one common characteristic. They all took an ­expansive
view of the right of individuals who are injured by an a­ dministrative
decision to seek prompt recourse in the federal courts. The circumstances under which they could do so would be determined under
the facts of each case, in accordance with common law principles of
justice, and not by a rigid formula.
In Abbott Laboratories, the Court upheld judicial review of food and
drug regulations that “purport[ed] to give an authoritative interpretation of a statutory provision that has a direct effect on the day-today business of all prescription drug companies, the promulgation
of which puts petitioners in a dilemma that it was the very purpose
of the Declaratory Judgment Act to ameliorate.”36 Likewise, in Frozen
Food Express, the Court permitted immediate judicial review of an
Interstate Commerce Commission order that did nothing more than
state the commission’s view of how a regulatory statute should be interpreted, but which nevertheless had the practical effect of putting
transportation companies on notice that they faced criminal penalties if they transported certain goods.37 Justice Ginsburg cited Frozen
Food Express as supporting her view that the approved JD in Hawkes
had “an immediate and practical impact.”38
33 Hawkes, 136 S. Ct. at 1817 (Ginsburg, J., concurring in part and concurring in the
judgment).
34 Id. at 1817 n.* (citing Abbott Labs., 387 U.S. at 149–151; Frozen Food Express v.
United States, 351 U.S. 40, 44 (1956)).
35 Id.
at 1817–18.
36 Abbott
Labs, 387 U.S. at 152.
37 Hawkes,
136 S. Ct. at 1815 (discussing Frozen Food Express, 351 U.S. at 44–45).
Id. at 1817–18 (2016) (Ginsburg, J., concurring in part and concurring in the
­judgment) (citing Frozen Food Express, 351 U.S. at 44).
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Cato Supreme Court Review
Perhaps in an attempt to assuage Justice Ginsburg’s concerns, Chief
Justice Roberts added that his analysis based on Bennett “tracks the
‘pragmatic’ approach we have long taken to finality,”39 and briefly
noted Abbott Labs and Frozen Food Express.
2. The trend toward removal of procedural barriers
By rejecting the government’s claim that approved JDs are not
judicially reviewable, the Supreme Court in Hawkes struck down a
significant barrier hindering owners’ vindication of their property
rights. In so doing, the Court continued a trend in its recent environmental and property rights cases.
The case on which Hawkes found most direct support was Sackett,
where, four years earlier, the Court had held that an EPA compliance order was subject to judicial review. The fact that a property
owner would be subject to substantial civil and criminal penalties
for failing to undertake environmental remediation compelled by
the compliance order, or by using his land in a manner inconsistent
with it, made it crystal clear that the order had an independent and
crucial effect. Hawkes dealt with the subtler issue of whether an approved JD legally and practically affected the landowner’s property
rights, even without a direct mandate ordering him to engage or refrain from specified acts. But Sackett paved the way for the Court to
decide Hawkes in the landowner’s favor.
Hawkes also likely builds on the saga of Marvin and Laura
Horne, who produced and later distributed California raisins for
table consumption. Under a New Deal-era federal marketing order,
the Hornes were required to turn over a portion of their crop to a
­government-sponsored “Raisin Administrative Committee” as part
of a scheme to control raisin prices. When they refused to do so, the
agency ordered them to pay a substantial administrative fine based
on the value of the raisins it claimed the Hornes wrongfully retained.
The Hornes countered that the Fifth Amendment to the U.S. Constitution states that if government takes private property it must pay
“just compensation,” (the “Takings Clause”) and that they should
be able to raise their Takings Clause claim as an affirmative defense
in the U.S. district court case in which the agency sought to collect
the administrative fine. The Ninth Circuit ruled against the Hornes,
39 Id.
264
at 1815 (quoting Abbott Labs, 387 U.S. at 149).
Advancing Judicial Review
stating that they would have to defend against the fine in federal district court in California, and would have to sue separately on their
takings claim in the U.S. Court of Federal Claims in Washington.40
Justice Clarence Thomas subsequently held for a unanimous
­Supreme Court that the district court reviewing the administrative
fine should also hear the Hornes’ offsetting takings claim.41 The
case was sent back to the Ninth Circuit, which subsequently ruled
that because raisins are personal property rather than real property
(such as land or buildings), the requirement that part of the crop
be transferred to the government was only a restriction on the use
of personal property, and hence not governed by stricter rules pertaining to the taking of real property.42 The Supreme Court again
accepted the case for review. In his 2015 opinion for the Court, Chief
Justice Roberts cut to the heart of the matter, defeating the personalversus-real-property distinction by observing, “The Government
has a categorical duty to pay just compensation when it takes your
car, just as when it takes your home.”43
Despite the positive trend of which Hawkes is the latest example,
several procedural barriers to the protection of property rights still
remain. Doubtless the most important procedural quagmire for
landowners attempting to vindicate their property rights in federal
court is a Catch-22 situation that the Court itself (perhaps inadvertently) created with its 1985 decision in Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City.44 That decision
applied only to “regulatory takings” claims, in which landowners assert that ostensible regulations of their property are in fact
so draconian as to run afoul of the Takings Clause. In Williamson
County, the Court held that a regulatory takings claim against a
state or local government is not “ripe” for review in federal court
unless the claimant first sued in state court and had been denied
compensation.
One might think that the requirement that property owners must
“ripen” their federal claims in state court simply means that in many
40 Horne v. U.S. Dep’t of Agric., 673 F.3d 1071 (9th Cir. 2011), rev’d, 133 S. Ct. 2053 (2013).
41 Horne
v. Dep’t of Agric. (Horne I), 133 S. Ct. 2053 (2013).
43 Horne
v. Dep’t of Agric. (Horne II), 135 S. Ct. 2419, 2426 (2015).
42 Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014), rev’d, 135 S. Ct. 2419 (2015).
44 473
U.S. 172 (1985).
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Cato Supreme Court Review
cases they must run the gauntlet of litigation in two sets of courts
rather than one. But it is worse than that.
In 2005, in San Remo Hotel v. City and County of San Francisco, the
Court considered the effect on regulatory takings claims of a federal statute requiring all courts within the United States to give “full
faith and credit” to proceedings in other American courts.45 The
Court held that the statute precluded the ligation in federal court of
issues that previously were heard in a state court. Since regulatory
takings issues tend to be almost identical under the federal and state
constitutions, the effect of San Remo is to bar property owners from
asserting their takings claims under the federal Constitution in federal court.46 The very act of satisfying the “ripeness” requirement by
suing in state court destroys the possibility that federal courts could
grant relief on property owners’ Fifth Amendment takings claims.
The Full Faith and Credit statute at issue in San Remo Hotel emanated from Congress. However, Williamson County is a creation of the
Supreme Court. There is no clear rationale for its requirement that
regulatory takings plaintiffs, and no others, are required to sue in
state court before going to federal court to vindicate a constitutional
right. Four members of the San Remo Hotel Court concurred in the
judgment so as to uphold the statute, but explained that the Court’s
decision in Williamson County “may have been mistaken.”47 Further
consideration of this issue, and the removal of the procedural barriers to federal litigation of one set of constitutional rights, might be
the most important extension of the Horne, Sackett, and Hawkes cases.
In addition to the Williamson County problem, there is another procedural difficulty for property-rights cases that has now been lurking for nearly 40 years. In 1978, in Penn Central Transportation Co. v.
City of New York, the Court promulgated the multi-factor, ad hoc test
that has governed most regulatory takings cases ever since.48 I have
45 545
46 See
U.S. 323 (2005) (considering 28 U.S.C. § 1738).
generally R.S. Radford & Jennifer Fry Thompson, The Accidental Abstention
Doctrine: After Thirty Years, the Case for Diverting Federal Takings Claims to State
Court under Williamson County Has Yet to Be Made, 67 Baylor L. Rev. 567 (2015).
47 San Remo Hotel, 545 U.S. at 348 (Rehnquist, C.J., joined by O’Connor, Kennedy,
and Thomas, JJ., concurring in the judgment).
48 438 U.S. 104, 124 (1978) (establishing as factors that have “particular significance”
the economic impact of the regulation on the claimant, the “investment-backed expectations” of the claimant, and the character of the regulation).
266
Advancing Judicial Review
argued elsewhere that each of Penn Central’s three principal factors
is defined largely with reference to the others, and that courts slight
the importance of determining the specific property (termed the
“relevant parcel”) that courts should consider.49 I also have argued
that the Penn Central doctrine is not based on a coherent theory and
is manipulated by federal courts to avoid hearing property rights
cases.50 If Penn Central is to be an ad hoc test based on all relevant
circumstances, it hardly makes sense for the Court to depart from its
underlying jurisprudential principle by countenancing a completely
arbitrary rule to determine what the relevant parcel is.
But the Court will have a chance to address this problem soon.
In Murr v. Wisconsin, siblings inherited a lakeside home from their
parents, as well as an adjoining lot that was acquired as an investment and titled in the name of the parents’ business.51 When their
parents died, the Murrs took title to both lots in their own names.
A state appellate court upheld a subsequent county zoning ordinance requiring that two separately deeded contiguous parcels
under common ownership must automatically and conclusively be
treated as one parcel for Penn Central analysis. The effect is that
the Murrs might be allowed to build only one house on both lots,
despite the fact that if a different owner had held the second lot
instead, an additional home could be built there. The state’s goal
is that loose and impressionistic Penn Central standards should
prevail where they favor government regulation, and that a rigid
and arbitrary rule should govern where it detracts from landowner
rights. The Supreme Court will hear argument in Murr during its
October 2016 term.
II. Clean Waters and Murky Regulation
In Sackett and Hawkes, the Supreme Court declared that landowners have a right to go to court to challenge determinations by the
49 Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St.
L. Rev. 601 (2014).
50 Steven
51 No.
J. Eagle, Penn Central and Its Reluctant Muftis, 66 Baylor L. Rev. 1 (2014).
2013AP2828, 2014 WL 7271581 (Wis. Ct. App. 2014) (unpublished), cert. granted, 136 S. Ct. 890 (Jan. 15, 2016), No. 15-214. The author has submitted an amicus brief
supporting the Murr family for The Reason Foundation, while the Cato Institute filed
its own brief.
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Cato Supreme Court Review
Corps of Engineers that affect their property rights. But the right to
challenge the Corps’ compliance orders, as in Sackett, or its “approved
jurisdictional determinations,” as in Hawkes, is of little avail if courts
subsequently uphold agency interpretations of the Clean Water Act
that are arbitrary or overly broad. Justice Anthony Kennedy wrote
a separate concurring opinion in Hawkes largely to adumbrate that
“the reach and systemic consequences of the Clean Water Act remain
a cause for concern.”52
A. The Clean Water Act
The Clean Water Act was passed by Congress in 1972.53 Its stated
purpose was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”54 The CWA provided that “the
discharge of any pollutant by any person shall be ­unlawful,” and defined the “discharge of a pollutant” broadly.55 It also, as an e­ xception to
this prohibition, authorized the EPA and the Army Corps of Engineers
to issue discharge permits.56 Most important for present purposes, the
CWA defined, without any explication ­whatsoever, “navigable waters”
as “the waters of the United States, including the territorial seas.”57
Laws regulating bodies of water have a lengthy history. Under
the common law, the king possessed sovereign authority over
navigable waters, including those in the colonies. After the American R
­ evolution, that power devolved upon the newly independent states.58 However, the federal Constitution’s Commerce
Clause limits the states’ powers, by granting Congress the power
to ­regulate commerce among the states.59 In the seminal 1824 case
52 Hawkes,
53 Federal
136 S. Ct. at 1816 (Kennedy, J., concurring).
Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012).
54 Rapanos v. United States, 547 U.S. 715, 722 (2006) (plurality op.) (quoting 33 U.S.C.
§ 1251(a)).
55 See id. (quoting 33 U.S.C. § 1311(a) and noting the term includes “any addition of
any pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12), and
that “pollutant” includes not only traditional contaminants but also solids such as
“dredged spoil, . . . rock, [and] sand,” § 1362(6)).
56 Id.
57 Id.
(citing 33 U.S.C. § 1342(a); § 1344(a), (d)).
(quoting 33 U.S.C. § 1362(7)).
58 See
Shively v. Bowlby, 152 U.S. 1, 57 (1894).
59 U.S.
268
Const. art. I, § 8, cl. 3.
Advancing Judicial Review
Gibbons v. Ogden,60 Chief Justice John Marshall concluded that
­Congress could regulate both interstate commerce and intrastate
activities affecting interstate commerce, and that “commerce”
clearly comprehended navigation.61 Later in the 19th century, in
the leading case The Daniel Bell, the Supreme Court limited federal power over navigable waters to those that were “navigable in
fact,”62 and held that this power extended to all navigable waters
that were accessible from another state.63
As used in connection with the CWA, the term “waters of the United
States” effectively means nothing more than “areas subject to federal
regulation under the Clean Water Act.” How extensively the phrase
“waters of the United States” is interpreted is the key to whether federal agencies can control the use of most lands in the nation.
B. The Court’s Interpretations of Lands Subject to Regulation under the
Clean Water Act
In interpreting the CWA, the Court first ventured beyond the
traditional “navigable in fact” standard in 1985, in United States v.
Riverside Bayview Homes, Inc.64 There, it considered the denial of a
permit to fill a lakeside marsh that “was adjacent to a body of navigable water,” in an area characterized by “saturated soil conditions
and wetland vegetation extend[ing] beyond the boundary of respondent’s property to . . . a navigable waterway.”65 The Court noted “that
‘the transition from water to solid ground is not necessarily or even
typically an abrupt one,’ and that ‘the Corps must necessarily choose
some point at which water ends and land begins.’”66 Because it found
that the Corps’ interpretation of this ambiguous dividing line was
reasonable, the Court “upheld the Corps’ interpretation of ‘the waters of the United States’ to include wetlands that ‘actually abut[ted]
on’ traditional navigable waters.”67
60 22
U.S. (9 Wheat.) 1 (1824).
62 77
U.S. (10 Wall.) 557 (1870).
61 Id.
63 Id.
at 186–98.
at 564 (quoting Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724 (1865)).
64 474
U.S. 121 (1985).
65 Id.
at 131.
67 Id.
at 725 (quoting Riverside Bayview, 474 U.S. at 135).
66 Rapanos, 547 U.S. at 724–25 (plurality op.) (quoting Riverside Bayview, 474 U.S. at 132).
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Cato Supreme Court Review
After Riverside Bayview, the Corps, as the Court later characterized
it, “deliberately sought to extend the definition of ‘the waters of the
United States’ to the outer limits of Congress’s commerce power.”68
With that backdrop, the Court next considered Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).69
There, the government asserted that “an abandoned sand and gravel
pit in northern Illinois” had become part of the “waters of the United
States.”70 The government’s justification was that the pit, which
had become filled with water, fell under its “Migratory Bird Rule,”
since birds and birdwatchers traveled across state lines to visit the
isolated pit.
Writing for the Court, Chief Justice William Rehnquist rejected
the government’s contention that “the next ineluctable step after
­Riverside Bayview” was to hold “isolated ponds, some only seasonable,” to be covered by the CWA because they were a “habitat for migratory birds.” He added that the Court’s extension of “waters of the
United States” to “nonnavigable wetlands adjacent to open waters”
in R
­ iverside Bayview was not a basis for “reading the term ‘navigable
waters’ out of” the CWA.71
SWANCC thus set the stage for the Court to provide a more
­comprehensive definition of “waters of the United States,” and two
Sixth Circuit cases soon provided the Court with that opportunity.
In United States v. Rapanos, the Sixth Circuit had ruled that wetlands
connected to navigable waters by only 20 miles of non-navigable
tributaries were subject to the Corps of Engineers’ jurisdiction.72
And in Carabell v. U.S. Army Corps of Engineers, the Sixth Circuit had
held that wetlands separated by an artificial berm from a ditch that
led to navigable waters were jurisdictional waters.73 Since the two
cases presented similar questions, the Supreme Court consolidated
them for review under the name Rapanos v. United States.74
68 Id.
at 724 (citing 40 Fed. Reg. 31324–25 (1975); 42 Fed. Reg. 37144 (1977)).
69 531
U.S. 159 (2001).
70 SWANCC,
71 Id.
531 U.S. at 162.
at 171–72.
72 376
F.3d 629 (6th Cir. 2004), vacated and remanded, 547 U.S. 715 (2006).
391 F.3d 704 (6th Cir. 2004), vacated and remanded sub nom. Rapanos v. United
States, 547 U.S. 715 (2006).
73 74 547
270
U.S. 715 (2006).
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Unfortunately, the Court in Rapanos split 4-1-4, and the Court’s
fractured opinions did not result in a clear definition of “waters of
the United States.” Thus, among lands that arguably are wetlands,
there is still no clear understanding of which can be used as the
landowner wishes and which are subject to strict controls by the
Corps under the CWA.
The Court’s plurality opinion in Rapanos, which vacated the Sixth
Circuit’s decisions and returned the cases to it, was written by Justice
Antonin Scalia, joined by Chief Justice Roberts and Justices Thomas
and Samuel Alito. Justice John Paul Stevens filed a dissent, joined by
Justices Ginsburg, David Souter, and Stephen Breyer. Justice Kennedy
wrote the controlling opinion, in which he agreed that the cases should
be sent back to the Sixth Circuit, but otherwise went off on his own.
Justice Scalia’s plurality opinion declared that, under the “only
plausible interpretation,” CWA jurisdiction extended to “only those
relatively permanent, standing or continuously flowing bodies of
water ‘forming geographic features’ that are described in o
­ rdinary
parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’”75 Correspondingly, “channels through which water flows intermittently or
­ephemerally, or channels that periodically provide drainage for rainfall” were not included.76
Justice Stevens’s dissent focused on the “quality of our Nation’s
waters,” and regarded the Corps’ determination as “a quintessential
example of the Executive’s reasonable interpretation of a statutory
provision.”77 Justice Breyer’s separate dissent went one step further,
asserting that the Corps’ authority under the CWA “extends to the
limits of congressional power to regulate interstate commerce.”78
On that basis, Breyer had “no difficulty finding that the wetlands at
issue in these cases are within the Corps’ jurisdiction.”79
Justice Kennedy, concurring only in the judgment, took an
­intermediate position. Although he gave the Corps considerable deference, he also strived to give “the term ‘navigable’ some meaning,”
75 Id.
76 Id.
at 739 (quoting Webster’s New International Dictionary 2882 (2d ed. 1954)).
77 Id. at 788 (Stevens, J., dissenting) (citing Chevron U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–45 (1984)).
78 Id.
79 Id.
at 811 (Breyer, J., dissenting).
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and therefore added that CWA wetlands jurisdiction “depends upon
the existence of a significant nexus between the wetlands in question
and navigable waters in the traditional sense.”80 Kennedy explained
that whether the required nexus exists depends on whether the wetlands at issue, perhaps in connection with others, significantly affect
the integrity of waters “more readily understood as ‘navigable.’”81
Justice Kennedy’s approach is heavily fact-based, and requires
lower courts to engage in a case-by-case analysis to determine
whether a “significant nexus” between the asserted wetlands and
navigable waters actually exists. Professor Erin Ryan recently wrote
that because Kennedy wrote the swing opinion in the 4-1-4 Rapanos
case, and because he placed the burden of establishing a “sufficient
nexus” on the government, “the United States gave up on thousands
of enforcement actions rather than invest scarce agency resources
in trying to prove jurisdiction.”82 She also noted that Rapanos was
“[n]otoriously among the least helpful Supreme Court decisions of
all time,” and that it “brims with competing rationales that failed to
establish meaningful guidance for decision makers.”83
In an attempt to fill this void, the Corps of Engineers and the EPA issued a new final “Clean Water Rule” in June 2015, which the EPA stated
would clarify and simplify implementation of the CWA through clearer
definitions and increased use of bright-line boundaries.84 Among other
things, this rule identified several situations where a case-by-case analysis would be used to determine wetlands to which the CWA applies.
These included “waters within the 100-year floodplain of a traditional
navigable water,” and “waters within 4,000 feet of the high tide line or
the ordinary high water mark of a traditional navigable water.”85
Since its promulgation, this rule has had many detractors from
all sides. Environmentalists have attacked the bright-line boundary
80 Id.
81 Id.
at 779 (Kennedy, J., concurring in the judgment).
at 779–80.
82 Erin
Ryan, Federalism, Regulatory Architecture, and the Clean Water Rule: Seeking Consensus on the Waters of the United States, 46 Envtl. L. 277, 282–83 (2016).
83 Id.
at 282.
85 Id.
at 37059.
84 Clean
Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37054,
37054 (June 29, 2015) (codified at 30 C.F.R. pt. 328, 40 C.F.R. pts. 110, 112, 116, 117, 122,
230, 232, 300, 302, 401) (noting that the rule would be effective on August 28, 2015).
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Advancing Judicial Review
provision as “arbitrary.”86 On the other hand, property-rights advocates have attacked the rule’s new concept of “adjacent waters”87
and other “vague categories” as extending jurisdiction to “massive
amounts of land[ that] are either automatically covered or covered on a
case-by-case basis (depending on factors the agencies will ­determine
later).”88 Similarly, the rule’s “significant nexus standard,”89 which
was derived from Justice Kennedy’s concurrence in Rapanos, was
criticized for being “so expansive that it is hard to conceive of any
wet area, if combined with all other supposedly similar areas in the
region, which would not meet the definition.”90 Likewise, use of the
100-year floodplain was castigated since it “necessarily includes vast
amounts of land that are dry 99.9 years out of 100. Because flood
plain maps are not fixed or definite, agency bureaucrats can assert
sweeping authority over many new areas of the Country.”91
At least 31 states have sued to stop the Clean Water Rule as overstepping Corps of Engineers and EPA jurisdiction under the CWA and
Supreme Court cases.92 In October 2015, the U.S. Court of Appeals for
the Sixth Circuit issued a nationwide stay against its enforcement.93
86 See Patrick Parenteau, A Bright Line Mistake: How EPA Bungled the Clean W
­ ater
Rule, 46 Envtl. L. 379, 379 (2016) (objecting particularly to the “‘bright line’ rule
­excluding all lakes, ponds, and wetlands lying more than 4,000 feet from the ordinary
high water mark or mean high tide line of jurisdictional waters” as “arbitrary for both
procedural and substantive reasons”).
87 See 80 Fed. Reg. at 37058 (“Under this final rule, ‘adjacent’ means bordering, contiguous, or neighboring, including waters separated from other ‘waters of the United
States’ by constructed dikes or barriers, natural river berms, beach dunes and the like.
Further, waters that connect segments of, or are at the head of, a stream or river are
‘adjacent’ to that stream or river. ‘Adjacent waters’ include wetlands, ponds, lakes,
oxbows, impoundments, and similar water features. However, it is important to note
that ‘adjacent waters’ do not include waters that are subject to established normal
farming, silviculture, and ranching activities as those terms are used in Section 404(f)
of the CWA.”).
88 Todd Gaziano & M. Reed Hopper, Final “Waters of the U.S.” Rule Is More Overreach by EPA, Forbes.com, Aug. 3, 2015, http://onforb.es/1P0AZNm. Mr. Hopper
represented the petitioner in Rapanos.
89 See
80 Fed. Reg. at 37060–61.
90 Gaziano
91 Id.
& Hopper, supra note 88.
92 Brief for Petitioner State of Ohio, et al. at 1, In re EPA, 803 F.3d 804 (6th Cir. 2015)
(Nos. 15-3799, 15-3822, 15-3853, 15-3887).
93 In
re EPA, 803 F.3d at 809.
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Cato Supreme Court Review
During the stay, the court added, the regime that has been in place
since the Rapanos decision will remain in place, although the court
expressed no certainty as to how the question “What is the status
quo?” should be answered.94
III. Practical Problems for Landowners
A. The Clean Water Act Is a Perfect Storm
The Clean Water Act presents a potentially dire juxtaposition for
landowners, in that it combines far-reaching consequences for land
use, a complex and largely subjective regulatory scheme, and substantial civil and criminal penalties for even unknowing violations.
In her Eighth Circuit concurring opinion in Hawkes, Judge Jane Kelly
acknowledged “just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA
jurisdiction.”95 She added that this is “a unique aspect of the CWA[
since] most laws do not require the hiring of expert consultants to
determine if they even apply to you or your property.”96 With some
understatement, Chief Justice Roberts also noted that “[i]t is often difficult to determine whether a particular piece of property c­ ontains
waters of the United States.”97
All of the Supreme Court justices agreed that Hawkes was entitled to relief from the untenable procedural situation in which the
Corps of Engineers had placed it. Quoting Justice Alito’s concurrence in Sackett, Justice Kennedy declared that the CWA’s reach is
“‘­notoriously unclear’ and the consequences to landowners even for
inadvertent violations can be crushing.”98
B. Wetlands Regulation and Government Extortion
The Corps of Engineers, along with state and local regulators, often
condition the granting of permits needed for development upon the
landowner’s agreement to make expensive alterations to the land, and
to limit its use and thereby reduce its value. These demanded changes
94 Id.
at 806.
95 Hawkes,
782 F.3d at 1003 (Kelly, J., concurring).
97 Hawkes,
136 S. Ct. at 1812.
96 Id.
98 Id.
at 1816 (Kennedy, J., concurring) (quoting Sackett, 132 S. Ct. at 1374–75 (Alito,
J., concurring)).
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may benefit other lands, including those owned by the regulator itself. But in a trilogy of cases, Nollan v. California Coastal Commission,99
Dolan v. City of Tigard,100 and Koontz v. St. Johns River Water Management
District,101 the Supreme Court has developed the doctrine that the exaction of property by government as a condition for granting development permits might violate the U.S. Constitution. As Justice Alito
wrote for the Court in Koontz, “[e]xtortionate demands for property in
the land-use permitting context run afoul of the Takings Clause not
because they take property but because they impermissibly burden
the right not to have property taken without just compensation.”102
The story of Koontz exemplifies the potential severity of such burdens. The permit applicant there owned 14.7 acres along a four-lane
Florida highway and wanted to build on 3.7 acres facing the road.
He offered the water-management district a conservation easement
over the rest of his land. The district refused, and informed Koontz
that he could have his permit only if he limited the project to one
acre and made expensive improvements, or, alternatively, “agreed
to hire contractors to make improvements to District-owned land
several miles away.”103 This demand was enough for the Court to
intervene, because “[a]s in other unconstitutional conditions cases in
which someone refuses to cede a constitutional right in the face of
coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.”104
The Court’s recent CWA jurisdictional waters cases are similarly replete with recognition of the possibility of regulatory abuse.
In Sackett, Justice Alito asserted that, under the EPA’s expansive
99 483 U.S. 825 (1987) (holding that there must be an “essential nexus” between the
exaction upon which a development permit is conditioned and the agency’s regulatory powers).
100 512 U.S. 374 (1994) (holding that there must be “rough proportionality” between
the exaction demanded of a permit applicant and the added police power burden
that the development would impose, and that this should be ascertained through an
“individualized determination”).
101 133 S. Ct. 2586 (2013) (holding that an exaction demanded might be of money in
addition to real property rights, and that the denial of a permit because of the owner’s
refusal to tender the exaction might “impermissibly burden” Takings Clause rights).
102 Id.
at 2596.
104 Id.
at 2596.
103 Id.
at 2593.
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Cato Supreme Court Review
reading of the CWA, “any piece of land that is wet at least part of
the year” may be classified by the EPA as jurisdictional wetlands,
so that “the property owners are at the agency’s mercy.”105 Likewise,
in ­Rapanos, Justice Scalia’s plurality opinion complained that, in
deciding whether to grant CWA permits, “the U.S. Army Corps of
Engineers . . . exercises the discretion of an enlightened despot.”106
In language borrowed from Sackett, Chief Justice Roberts observed in
Hawkes that respondents need not assume the risk of civil and potential criminal liability “while waiting for EPA to ‘drop the ­hammer’ in
order to have their day in court.”107
More broadly, Justice Scalia stated in Rapanos that “[t]he enforcement proceedings against Mr. Rapanos are a small part of the
­immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the
governing statute—during the past five Presidential administra­
tions.”108 He added that, in the Corps’ view, “the entire land area
of the United States lies in some drainage basin, and an endless
network of visible channels furrows the entire surface, containing
water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a ‘water of the
United States.’”109 Furthermore, the Corps has “assert[ed] jurisdiction over ‘270-to-300 million acres of swampy lands in the United
States—including half of Alaska and an area the size of California in
the lower 48 States.’”110
And perhaps most salient of all these pronouncements is Justice Alito’s warning that “the combination of the uncertain reach of the Clean
Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little
practical alternative but to dance to the EPA’s tune.”111 The stage is thus
set, both in the CWA context and others, for the Court to give serious
consideration to the unconstitutional nature of unjust permit denials.
105 Sackett,
132 S. Ct. at 1375 (Alito, J., concurring).
106 Rapanos,
107 Hawkes,
108 Rapanos,
109 Id.
110 Hawkes,
111 Sackett,
276
547 U.S. at 721 (plurality op.).
136 S. Ct. at 1815 (quoting Sackett, 132 S. Ct. at 1372).
547 U.S. at 722 (plurality op.).
136 S. Ct. at 1811–12 (quoting Rapanos, 547 U.S. at 722 (plurality op.)).
132 S. Ct. at 1375 (Alito, J., concurring).
Advancing Judicial Review
IV. Conclusion
As Justice Alito observed in Sackett, “[t]he reach of the Clean Water
Act is notoriously unclear.”112 He added that since Congress passed
the Clean Water Act in 1972, it has done “nothing to resolve” the lack
of a clear definition of the wetlands over which the Corps of Engineers and the EPA have jurisdiction.113 As discussed earlier, it does
not seem likely that the 2015 Clean Water Rule will solve the need for
clear and objective rules either. Ideally, Congress will enact laws limiting and clarifying the CWA, but at present that seems implausible.
Thus, it will likely remain the task of the courts to try to shape as
clear and logical an interpretation of the Clean Water Act as possible.
In that endeavor, Hawkes is the latest in a string of cases that the
Court might build upon in making the law more clear and fair. In
that process, the case makes a small, but important, step toward protecting property not only from overreaching claims pertaining to
environmental regulation, but also from attempts to limit other important aspects of property rights.
112 Id.
113 Id.
277